Tied Down: The United States and the International Criminal CourtThe American Legion MagazineMay 2004 By Alan W. Dowd

It’s difficult to fault the motives of those who believe the world needs an International Criminal Court to combat genocide, war crimes and other crimes against humanity. For that matter, it’s difficult to argue with the rationale for such a body.

Genocide has deformed the very ethnic composition of mankind. Sadly, it’s almost as old as the concept of nationhood itself. Pharaoh tried to control the Israelites by exterminating their infant sons; other ancients did even worse. In our own time, Saddam Hussein carried out an internal genocide against his people. Slobodan Milosevic erased 250,000 Bosnian Muslims and Croat Catholics in a war of aggression. Sudanese Muslims have killed some two million Sudanese Christians. In the span of 100 days in 1994, 800,000 Tutsis were macheted to death by rival Hutu clans in Rwanda. And these latter-day monsters are just pale imitations of those who roamed the earth in the first 75 years of the 20th century: Lenin, Stalin and their heirs erased some 61 million. Hitler used Moscow’s terror to justify his own, killing 21 million people, including 6 million Jews, in an orgy of war crimes. In China, Mao Tse-Tung erased 37 million people. In Cambodia, Pol Pot murdered 2.4 million people. In North Korea, Kim Il-Sung butchered 1.66 million. In Yugoslavia, Tito would erase 1.1 million. In Ethiopia, the murder toll was 725,000. And the list goes on.

Incredibly, most of the men responsible for these horrors escaped justice. As one human-rights advocate observed, “A person stands a better chance of being tried for killing one human being than for killing a hundred thousand.”

Yet if the motives and rationale of ICC supporters are sound, their chosen method for combating man’s inhumanity to man is not. In fact, by seeking to constrain the world’s sole superpower and by accentuating a split within the West, the nascent UN court is doing more harm than good.

As Predicted

Between 1998 and 2002, two different US administrations labored to improve the treaty that spawned the ICC, and for good reason:

Under the treaty’s hazy definitions, war crimes include "extensive destruction and appropriation of property;" depriving "a prisoner of war…of the rights of fair and regular trial;" launching an attack "in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects;" employing weapons which are intended to cause "superfluous or unnecessary suffering." Depriving an identifiable group of "fundamental rights" could be considered a crime against humanity, as could "causing great suffering or serious injury to body or to mental or physical health." The ICC treaty broadens the definition of genocide to include “causing serious bodily or mental harm” with the intent to destroy members of a specific ethnic, national or religious group.It criminalizes the act of “aggression” but fails to define what constitutes aggression.

To his credit, President Bill Clinton ordered America’s representatives to the treaty-writing conference to vote against the final document. The US delegation wasn’t concerned about Americans committing these crimes, but rather about Americans being accused of committing such crimes. The Clinton administration also worried that the ICC could be flooded with spurious claims that would “embroil the court in controversy, political decision-making and confusion.” To remedy both concerns and address the specific issues described above, the US delegation proposed that permanent members of the UN Security Council be granted the power to veto an ICC prosecution. Those proposals were rejected.

Although Clinton ended up signing the treaty two years later, he refused to send it to the Senate “until our fundamental concerns are satisfied.” Those concerns were still unaddressed when the treaty came into force in mid-2002, which is why President George W. Bush disavowed the treaty. His administration even echoed some of the Clinton administration’s concerns: Without better safeguards, Defense Secretary Donald Rumsfeld warned, the ICC would force the United States to “become cautious, more limited, some would say isolationist.” Ambassador for War Crimes Pierre Prosper noted that “there is a real possibility that someone will use the ICC for political purposes [and] exploit the process.” Undersecretary of State Marc Grossman called the ICC “an institution of unchecked power,” thanks to its rejection of an oversight role for the UN Security Council.

Perhaps the only thing surprising about the ICC’s first year is how quickly America’s predictions came to pass.

-Before the dust even settled in Baghdad, a handful of Iraqis tried to take Gen. Tommy Franks to the ICC for war crimes. Among their charges were that US forces fired upon an ambulance, attacked civilian vehicles, bombed a Baghdad market, attacked a bus, and failed to stop postwar looting. The ICC had no jurisdiction over the case since the United States is not party to the treaty, but Belgian attorney Jan Fermon tried to force the case into the Belgian courts, which claim to have “universal jurisdiction” over virtually anything. The Belgian government refused to take up the case and instead referred the complaint to the United States, as allowed under Belgian law. Even so, the suit validated Washington’s concerns.

-Greek lawyers filed suit in the ICC against British Prime Minister Tony Blair and other members of his government. Claiming that the Iraq war violated the UN Charter, Geneva Convention and Rome Treaty (which spawned the ICC), the suit blamed Blair for killing civilians, depriving people of potable water, destroying food shipments and targeting residential areas. Detailing 110 violations of international law, the plaintiffs promise to call UN Secretary General Kofi Annan, former UN weapons inspector Hans Blix, and officials from the European Union to testify against Blair. (One wonders where the outrage was when a bona fide war criminal reigned in Baghdad.)

-All told, there were some 500 complaints brought before the ICC in its first year, forty of which accuse the US-led coalition of “aggression” against Iraq, and sixteen of which cite the United States for criminal action. The ICC has but one prosecutor to handle the flood of claims.

License for War

Some argue that as long as the United States refuses to ratify the treaty, Americans will remain beyond the ICC’s reach. But that’s not necessarily true. Although non-ICC countries are shielded from suits filed by organizations, groups or individuals, if a member of the UN Security Council refers an allegation to the ICC prosecutor—even if the accused is a citizen or official from a non-ICC country—then the case can be tried under the Rome Treaty. As a review by the Congressional Research Service concluded, this loophole empowers the ICC to “exercise jurisdiction over a US citizen.”

Hence, it is not really the United States that’s imposing its will on other countries, but rather the ICC that’s trying to impose its will on the United States. That presents a serious problem for the United States and the UN.

Whether the UN and its new court like it or not, the United States has become the guarantor of global stability. It is US troops who keep the peace in the Balkans and the rest of Europe, in Korea and the Pacific, in the Persian Gulf and Central Asia. And in many cases the United States doesn’t even seek the responsibility: In Liberia, Somalia, and Haiti, for example, it was the UN that came to the United States.

The founders of the ICC may refuse to recognize America’s special role, but by turning to Washington when civil war breaks out in Liberia, or nuclear weapons sprout up in North Korea, or peacekeepers are needed in the Sinai, they are tacitly conceding that the United States is, well, special. As Johns Hopkins professor Fouad Ajami sighs, “The world rails against the United States, yet embraces its protection, its gossip and its hipness.”

In fact, as of 2004, Washington has defense-treaty commitments with 50 countries; the US military is the last (and first) line of defense for dozens of others. This role of stabilizer and honest broker expands daily in the War on Terror, with US forces now deployed in more than 100 countries. Since ICC officials won’t grant the United States exemptions to carry out this function, Washington is taking matters into its own hands:

-Using an ICC loophole to their advantage, US diplomats are hammering out side agreements with scores of countries to protect US troops from ICC prosecution. Among the 38 countries that have already agreed are Tajikistan, Afghanistan, Djibouti, the Philippines, Azerbaijan, Uzbekistan, Bosnia, Bahrain, India, and Israel—all important fronts in the War on Terror.

-Congress has passed the American Servicemembers’ Protection Act, which blocks US military assistance to any country that signs on to the ICC but refuses to sign a side agreement shielding US personnel. Underscoring just how serious Congress is taking the ICC’s attack on American sovereignty, ASPA also authorizes the president to use “all means necessary and appropriate” to free American or allied personnel from ICC imprisonment. In other words, ASPA is a license for war. Recall that this legislation emanated from a Democratic-controlled Senate, was passed by a Republican House and was signed by a Republican president.

Transformations

Chasing after what Alexis de Tocqueville called the “indefinite perfectibility of man,” proponents of the ICC believe the court will “achieve justice for all…end impunity…end conflicts…remedy the deficiencies of ad hoc tribunals…deter future war criminals.” In a word, they believe the ICC can change human nature. They are wrong, and history itself mocks them.

How can a court decision shame the shameless or punish the lawless? How will a court achieve justice for Saddam’s murdered victims, or the Taliban’s, or Kim Jong Il’s? How will it end impunity without the capacity to punish the guilty? How will it end conflicts, many of which rage even now between signatories of the ICC treaty? How will it deter future war criminals if Nuremburg, the most powerful war-crimes tribunal in history, failed to deter Stalin, Pol Pot, Mengistu, Amin, Saddam, the Hutus, Milosevic, or bin Laden?

It seems that a global effort to transform the regimes and systems that perpetrate these crimes would be more effective than what amounts to a global D.A. As British statesman and author George Walden once observed, “The most reliable unit of peace is a prosperous, educated, stable democratic nation.”

The United States may be on the wrong side of the world for opposing the ICC; but if it continues to replace dictatorships with democracies, it will remain on the right side of history.